New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2006-010-033, Claim No. 101014


Tuberculosis-No negligence in housing inmate.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
Robert W. Nishman, Esq.
SCHNEIDER, KAUFMAN & SHERMAN, P.C. By: Howard Sherman, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 11, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

In March 1999, during claimant’s incarceration at Tappan Correctional Facility (Tappan), claimant was diagnosed with Tuberculosis (TB). Tappan is a medium security facility on the grounds of Sing Sing Correctional Facility (Sing Sing), where inmates live in dormitory-style quarters. Claimant was housed in a dormitory adjacent to where Inmate A
was housed and, from July 26, 1998 to September 14, 1998, claimant and inmate A used the same common areas for showering, eating and recreation. On September 14, 1998, Inmate A was transported to St. Agnes Hospital (St. Agnes) and, on September 22, 1998, he was diagnosed with active TB. Claimant contends that he contracted TB from his continued and frequent exposure to Inmate A.
Claimant alleges that defendant was negligent in its medical treatment of Inmate A, i.e., in its failure to diagnose timely Inmate A with TB and then remove him from general population prior to September 14, 1998
. Claimant further alleges that such negligence proximately caused his illness.
Defendant maintains that the New York State Department of Correctional Services (DOCS) followed its Health Services Policy for the detection, containment, prevention and treatment of TB and properly diagnosed and treated Inmate A (Ex. 1).
Robert E. Fiore, who was employed by DOCS from November 1994 to May 2000 as a Regional Infection Control Nurse, testified that in his position he acquired knowledge of all diagnosed cases of active TB at Sing Sing from January 11, 1998 through March 31, 1999. DOCS’ policy on the prevention, detection, containment and treatment of TB is contained in Claimant’s Exhibit 1, and Fiore explained that, as a means of preventing the spread of TB, every inmate is screened upon entry into the correctional system. The screening consists of a Purified Protein Derivative (PPD) skin test and a chest x-ray. Pursuant to policy item 1.18, inmates receive a PPD test annually. A positive reaction to the PPD test (a swelling of greater than five millimeters) indicates that an individual has been exposed to TB and has a latent infection. A person who has a positive PPD will always test positively. Therefore, repeat PPD tests are not given to such inmates. Fiore noted that there is a difference between a latent TB infection and the active TB disease. Active TB is marked by a “constellation of symptoms” which include chills, fever, night sweats, weight loss, coughing, blood-tinged sputum, weakness and fatigue
(T:58). To confirm a diagnosis of active TB, three sputum specimens are evaluated for Acid-Fast Bacillus (AFB) by means of smear and culture tests. The smear results, although not definitive, are available within one to two days. A backup culture takes approximately eight weeks for conclusive findings. While awaiting the culture test results, DOCS’ policy is to place the inmate in a respiratory isolation room. If the inmate is diagnosed with TB, then he will not be released from isolation until he has received a minimum of two weeks of anti-TB drugs and then tests negative for three consecutive smears with an improvement or resolution of symptoms. The inmate is then followed-up at least monthly.
Fiore further testified that, since TB is spread through airborne particles, contact investigations are conducted to evaluate anyone who may have been exposed to active TB. Individuals are given a PPD test and examined for possible signs of active TB. Pursuant to DOCS’ policy, investigations begin with close contacts and then extend to lower-risk groups in a concentric circle approach. A baseline PPD is obtained and 12 weeks later, the longest time it takes to convert from a negative to a positive PPD response, another test is administered. The testing extends in stages to progressively lower-risk groups until the rate of conversion is less than one percent.
In 1996, Inmate A had a positive PPD test and was treated with a six-month regimen of prophylactic isoniazid (INH) and vitamin B6. This medication is routinely given for latent TB infections.
On July 30, 1998, Inmate A presented at sick call with complaints of fever, chest pain and coughing. His physical examination revealed a temperature of 99.4 degrees and clear lung fields (Ex. 2A, p 13). He was advised to decrease smoking and increase his fluids. According to Fiore, Inmate A’s symptoms were indicative of a range of upper respiratory infections, but did not constitute the constellation of symptoms associated with active TB. He explained that active TB typically includes blood tinged sputum, weight loss, night sweats and chills. Inmate A did not present with such symptoms, nor did his complaints match the physical assessment of him. For example, he complained of fever, but his temperature was 99.4 and anything less than 99.6 is not considered a fever. He also reported chest pain, but there were no objective findings of pain and his lung fields were clear.
Inmate A returned to sick call on August 31, 1998 complaining of chest congestion. Again, Inmate A’s complaints did not match the physical assessment of him as his lung fields were clear. A follow-up was noted for September 8, 1998 (Ex. 2A, p 13). On Friday, September 11, 1998, Inmate A presented for his follow-up with complaints of a cough, white phlegm, fever and weight loss. He exhibited swollen lymph nodes in his neck and groin as well as coarse bronchi in his lungs.
A physical examination revealed an abnormality of his right lung. He was prescribed cough medicine, tylenol and an antibiotic to rule out bronchitis. In response to the clinical findings, a chest x-ray was ordered to be taken on Monday, September 14, 1998 (there was no technician at Sing Sing on Friday, September 11, 1998). On the September 14, 1998 follow-up, Inmate A complained of a worsening cough, blood tinged sputum, chills, night sweats and oral thrush. He was transferred to St. Agnes to rule out pulmonary TB. Inmate A was diagnosed with TB and subsequently discharged to Greenhaven Correctional Facility where he was placed in respiratory isolation until he was cured.
On October 1, 1998, DOCS initiated a contact investigation at Sing Sing based on Inmate A’s diagnosis of TB. The period of infectivity was determined as July 16, 1998 (two weeks prior to Inmate A’s first complaint) to September 14, 1998 (when Inmate A was transferred). In the first step of a contact investigation health professionals visit the site and assess the housing arrangements. In this case, Inmate A had been housed in a dormitory-style setting with 50 beds in a large open area measuring approximately 75 to 100 feet by 75 feet. Claimant resided in an adjacent dormitory separated from Inmate A’s dormitory by a wall and an open correction officers’ station, described as a pass through measuring 10 feet by 3 feet. Initially, 44 employees and the 27 inmates assigned to the beds surrounding Inmate A were PPD tested and examined; this was completed by November 16, 1998. The testing was thereafter expanded twice to the next group of beds until the conversion rate was zero. The trace investigation was completed by February 12, 1999.
Fiore conceded that if claimant had showered at the same time as Inmate A or if they had eaten together or participated in the same recreational activity, then it would have been possible for claimant to have contracted TB from Inmate A. Fiore was not aware of the extent of any personal interaction between the two inmates.
On March 4, 1999, claimant presented at sick call complaining of coughing for three days. His temperature was 99.4 degrees and he exhibited clear lungs. On March 11, 1999, he complained of fever, a constant cough and vomiting. His temperature was 97.2 degrees and his lung fields were clear. Claimant requested a PPD test. Since his last test in July 1998 was negative, he was not due to repeat the test until July 1999.
At claimant’s March 16, 1999 sick-call visit, he complained of a persistent dry cough and was referred to a physician’s assistant for evaluation. On March 23, 1999, he presented at sick call complaining of night sweats, chills, a non-productive cough, shortness of breath, weight loss, a temperature of 99.9 degrees and rale sounds in his lungs. Claimant was transferred to St. Agnes Hospital to rule out pulmonary TB and pneumonia. On March 25, 1999, claimant was placed in respiratory isolation and started on a drug regimen for TB. By October 27, 1999, he had no respiratory complaints.
Dr. Igal Staw offered expert testimony on behalf of claimant. Staw is board certified in internal medicine and pulmonary medicine. When presented with a hypothetical reflecting the facts surrounding Inmate A’s sick-call visit of July 30, 1998, Staw opined that he would have sent Inmate A for an x-ray to make sure that there was no pulmonary infiltration. Further, since a negative x-ray does not necessarily indicate the absence of TB, Staw would have then ordered a CAT scan. On cross-examination, Staw qualified his direct testimony and stated that he would have suggested that a CAT scan be considered, but he could not answer whether he would have actually ordered the test.
Staw opined that it was a departure not to do any further testing of Inmate A on July 30, 1998, under the circumstances presented. Staw further testified that if both tests were negative, then he would have treated Inmate A’s symptoms. If the symptoms did not resolve, then a sputum specimen test would have been ordered.
Staw believed that if a patient with Inmate A’s symptoms had been found to have TB in September, then a sputum test on July 30th would have likely shown TB on that date (T:206). However, on cross-examination, Staw testified that he did not know if the sputum sample would have come back positive if done on July 30th because the microbacterial load may have been too low to detect (T: 263). Staw further opined that a patient presenting with Inmate A’s symptoms on July 30th, who was not given an X-ray, a CAT scan or a sputum test, should have been seen again in one week rather than one month later. Moreover, if such a patient complained of chest congestion on a second visit, a chest x-ray should be ordered. In any event, considering the symptoms exhibited July 30th, August 31st and September 11th, Staw opined that it was a departure not to take an x-ray as of September 11, 1998.
Based upon the fact that claimant was housed in the same unit as Inmate A, and ate, showered and had recreational activities in the same areas, Staw concluded to a reasonable degree of medical certainty that Inmate A was the source of claimant’s TB. Staw reached this conclusion, however, without reviewing DOCS’ contact tracing policy or the particular contact investigations conducted regarding Inmate A and, on cross-examination, Staw conceded that he could not definitely identify the source from whom claimant had contracted TB (T:285).
Staw testified that, in a well defined population, you can usually find the source of the TB. When asked to assume that an inmate has contact with visitors from outside the correctional facility, Staw conceded that if a person were exposed to more than one individual with active TB, then it would be impossible to definitely confirm the source of the TB. Staw acknowledged that the treatment of claimant’s TB was proper.
Claimant testified that from July through September 1998, he and Inmate A were housed in units which were located approximately 60 feet apart from each other and were separated by a wall. Claimant estimated that he and Inmate A had engaged in woodworking projects at the same table twice a week. They often showered in the same area and went to mess hall together every other day.
Claimant testified that, during his incarceration, he had visits from his wife who had been exposed to TB, but had never had active TB. Claimant testified that he first became ill in January 1999 and reported to sick call complaining of a cough; however the first indication in his ambulatory health record of a cough is March 4, 1999. Based upon other symptoms which developed after that date, on March 23, 1999, claimant was transferred to St. Agnes and placed in an isolation ward. Claimant was thereafter returned to Sing Sing and spent the next two and a half months in isolation. According to claimant, his symptoms had subsided by the end of May 1999. During claimant’s incarceration, he worked as a plumber and had contact with inmates in three different buildings, housing approximately 250 inmates per building (T:328-31, 335).
Dr. Harish Moorjani testified that he is a board certified physician in internal medicine and infectious disease. Since 1994, he has provided infectious disease services for DOCS at St. Agnes and has run infectious disease clinics at correctional facilities. Moorjani has diagnosed and treated approximately 20 inmates with TB. In addition to the correctional system, he has treated more than 1000 patients with TB and has diagnosed more than 500 with the disease.
Moorjani testified that the length of time it takes to diagnose TB from the onset of symptoms can vary from four weeks to four years. A sputum culture test takes six weeks to obtain a definitive result. In his opinion, a diagnosis made within seven weeks is a relatively short time period and not a departure from acceptable medical standards. In his practice, Moorjani typically would not consider TB unless a patient had a cough for at least three weeks. A patient presenting as Inmate A had on July 30, 1998, should receive symptomatic care, health counseling and be directed to return if there is no improvement or if new symptoms develop. Moorjani explained, in prison, it is not feasible to recall each inmate for every complaint; rather the onus is on the patient to return to sick call if his symptoms worsen or do not resolve (T:414). Moorjani further maintained that a chest x-ray is not warranted for every inmate with an upper respiratory infection and, for Inmate A on July 30, 1998, an x-ray was not required and a CAT scan would have been an unnecessary exposure to radiation.
Moorjani also opined that taking a sputum sample on July 30, 1998 was unnecessary because a sputum culture would have no value in an acute respiratory infection in an uncomplicated healthy 30-year-old individual (T:416). Moreover, Moorjani reasoned that, if Inmate A’s sputum had been tested in July 1998, it was more than likely that the smear would have been negative (T:441). Moorjani further opined that Inmate A’s symptoms on July 30, 1998, were consistent with an upper respiratory infection, a viral infection or bronchitis and were not consistent with TB (T:417). Moorjani explained that he reached his opinion based upon the fact that a cough had not been present for three weeks and there had been no documented fever, night sweats or weight loss (T:418). Additionally, there were no predisposing conditions and the patient had not been PPD positive for two years prior and had been treated with INH (T:418). Under those circumstances, the risk of TB was negligible (T:418). Moorjani also testified that on July 30, 1998, there was no necessity for Inmate A to have been removed from general population and placed in isolation. Moorjani concluded that Sing Sing’s treatment of Inmate A on July 30, 1998 was not a departure from good and acceptable medical practice (T:418).
Moorjani further testified that Sing Sing’s treatment of Inmate A on August 31, 1998 also constituted acceptable medical care. After considering Inmate A’s symptoms on September 11, 1998, Moorjani concluded it was appropriate to prescribe amoxicillin to rule out bronchitis and then get an x-ray on September 14th. In his opinion, it was perfectly reasonable that an X-ray technician was not present every day in a prison because if a test were deemed necessary it would be scheduled offsite. By September 14, 1998, Inmate A’s status had changed. He had blood tinged sputum, chills and thrush and was transferred to St. Agnes.
It is well settled that the State owes a duty of ordinary care to provide its charges with adequate medical care (see Mullally v State of New York, 289 AD2d 308; Kagan v State of New York, 221 AD2d 7, 8). To prove that the State failed in its duty and committed medical malpractice, claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of medical care and that such departure was a substantial factor or proximate cause of the alleged injury (see Mullally v State of New York, supra; Kaminsky v State of New York, 265 AD2d 306). A departure from good and accepted medical practice cannot be inferred from expert testimony; rather the expert must expressly state, with a degree of medical certainty, that defendant’s conduct constitutes a deviation from the requisite standard of care (see Stuart v Ellis Hosp., 198 AD2d 559; Sohn v Sand, 180 AD2d 789; Salzman v Alan S. Rosell, D.D.S., P.C., 129 AD2d 833). It is also well established that:
“[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury”

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent in its medical treatment of Inmate A. The testimony of defendant’s expert was persuasive (see Scariati v St. John’s Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). Dr. Moorjani testified that DOCS followed its own policy and procedures for the detection, containment, prevention and treatment of TB and did not depart from good and accepted medical standards. While claimant argues that Inmate A was admitted to St. Agnes in September with a two-month history of complaints, it is noted that such history was “obtained from Inmate A” and was not supported by any corresponding documented complaints in the facility’s records (Claimant’s brief at p. 3). Indeed, claimant concedes that the first entry in the facility’s records is for July 30, 1998 (id.). This is significant because Dr. Moorjani, defendant’s expert, testified that on July 30, 1998, he would not have considered Inmate A to have TB without a history of cough for at least three weeks.
Robert E. Fiore, a Regional Infection Control Nurse employed by DOCS, also testified that on July 30, 1998 Inmate A did not present with the constellation of symptoms indicative of active TB. Rather, Inmate A’s symptoms were more within the range of an upper respiratory infection. Under the circumstances, Moorjani opined that Inmate A had properly received symptomatic care and neither an x-ray nor a CAT scan was warranted and a sputum sample would have more than likely been negative at that time. The testimony of claimant’s expert, Dr. Staw, was not convincing as to the necessity of an x-ray or a CAT scan and he conceded that he did not know if a sputum sample would have been positive as the microbacterial load may have been too low to detect on July 30, 1998. Staw also conceded that, while he would have suggested a CAT scan, he could not answer whether he would have actually ordered the test. Moorjani also noted that there had been no documented fever, night sweats or weight loss and no predisposing conditions; therefore the risk of TB in Inmate A was negligible. On August 31, 1998 Inmate A complained of chest congestion and again a physical assessment of the patient was not consistent with his complaints as his lung fields were clear.
It was not until Friday, September 11, 1998 that Inmate A presented with any recognizable symptoms of possible TB necessitating an x-ray, which was scheduled for Monday, when the x-ray technician was next present at Sing Sing. While claimant argues that the x-ray should have been ordered immediately on September 11, 1998, and it was a departure from adequate medical care to wait until Monday, the evidence is inconclusive and purely speculative as to whether such conduct, even if negligent, was a proximate cause in claimant contracting TB (see Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant’s larynx]). Indeed, claimant’s own expert conceded that it could not be definitely determined from whom claimant had contacted TB and claimant concedes at page five of his post-trial memorandum that it is not known whether the disease was transmitted to claimant between September 11th and September 14th.
Accordingly, the Court finds that claimant has failed to establish that defendant’s treatment of Inmate A was negligent and that such negligence was a proximate cause of claimant contracting TB.
Defendant’s motion to dismiss, upon which decision was reserved, is hereby GRANTED.
Let judgment be entered dismissing Claim No. 101014.

October 11, 2006
White Plains, New York

Judge of the Court of Claims

[1]. To protect his confidentiality, an inmate diagnosed in September 1998 with active TB was referred to throughout the trial as Inmate A.
[2]. Since Inmate A was removed from the housing unit on September 14, 1998, any treatment rendered to him after that date is irrelevant to this claim.
[3].Claimant has withdrawn that part of his claim alleging that he received improper treatment after he was diagnosed with TB.
[4].References to pages of the trial transcript are preceded by T.